The Supreme Court returned to the bench today to hear oral argument in one case. An orders list was also released which included the grant of one case to be argued next term. The case covers a question under the Fair Debt Collection Practices Act and when the 1-year statute of limitations under the act is tolled. There is a circuit split over the issue currently, so it is a solid choice for a cert grant. The Court was not done there, however, as a short Per Curium opinion was also released covering the festering issue of ... zombie judges. I may be sensationalizing slightly, but if you want to learn more, please read on!
Yovino v. Rizo, 18-272 (9th Circuit Court of Appeals)
MAJ: Per Curium
ConJud: Sotomayor (No Opinion Issued)
Judge Stephen Reinhardt was appointed to the 9th Circuit Court of Appeals by Jimmy Carter back in 1980, and served on that court for a whopping 38 years until he died in March 2018. A notably liberal judge, he was also a major "feeder judge" to the Supreme Court, with his law clerks regularly ascending up a level after service with him. When Judge Reinhardt died, he was working on several cases - despite being 87 years old, he was still an active member of the Court.
In two cases, Judge Reinhardt's work was essentially complete when he died. In one of them, in which he was the second judge on a two-judge majority, an opinion was initially issued in the case but the decision was later vacated and a new trial panel was reconstituted to resolve the matter. The other case, however, was this case of Yovino v. Rizo, in which Judge Reinhardt's work would come to play a significant role in the outcome of the case.
Unlike in the first case, Yovino was an en banc panel of 11 judges. Judge Reinhardt's majority opinion was for a court that was splitting 6-5. Under 9th Circuit rules, an en banc panel (which, despite the name, constitutes just 11 judges rather than the full 9th Circuit bench) issues precedential decisions for the Circuit even if they are split decisions, rendering this opinion very consequential. The court issued Judge Reinhardt's opinion 11 days after he died, explaining that he had completed his work on the case and the opinion simply had not been released, and therefore deciding that his vote would count.
The Supreme Court had little time for this argument. First, the Court cited United States v. American Foreign S.S. Corp., 363 U.S. 685, 687-691, for the proposition that a judge an active judge is one who is still in active service (a judge in that case had retired prior to the issuance of a ruling), and also for the proposition that a case or controversy is "determined when it is decided." In other words, the issuance of the opinion itself is the relevant deadline, and a judge not in active service "is without power to participate" in the ultimate resolution of a case.
The Court further made clear that "we are not aware of any rule or decision of the Ninth Circuit that render's judges votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released." The Ninth Circuit, therefore, may have felt that Judge Reinhardt's participation in the case ended prior to his death 11 days before the decision was issued, but the Supreme Court made clear that there was no reason that had to be the case had the judge not died. As with the retired judge in American Foreign S.S. Corp., however, Judge Reinhardt no longer had the power to participate in the case by the time it came down.
"Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. [author's aside: I told you there would be zombie judges in this opinion!] But federal judges are appointed for life, not for eternity." With that, the Court granted cert, vacated the judgment below, and sent the case back to the Ninth Circuit for proper resolution.
This was undoubtedly the correct opinion, and there isn't much further analysis needed. It's somewhat remarkable that the Ninth Circuit didn't get this one right. Incidentally, I have no idea why Justice Sotomayor did not join the Per Curium opinion and instead issued a concurrence in the judgement instead. She did not write an opinion, so it is probably a pretty quirky reason that she doesn't feel the need to articulate fully.
Yovino v. Rizo, 18-272 (9th Circuit Court of Appeals)
MAJ: Per Curium
ConJud: Sotomayor (No Opinion Issued)
Judge Stephen Reinhardt was appointed to the 9th Circuit Court of Appeals by Jimmy Carter back in 1980, and served on that court for a whopping 38 years until he died in March 2018. A notably liberal judge, he was also a major "feeder judge" to the Supreme Court, with his law clerks regularly ascending up a level after service with him. When Judge Reinhardt died, he was working on several cases - despite being 87 years old, he was still an active member of the Court.
In two cases, Judge Reinhardt's work was essentially complete when he died. In one of them, in which he was the second judge on a two-judge majority, an opinion was initially issued in the case but the decision was later vacated and a new trial panel was reconstituted to resolve the matter. The other case, however, was this case of Yovino v. Rizo, in which Judge Reinhardt's work would come to play a significant role in the outcome of the case.
Unlike in the first case, Yovino was an en banc panel of 11 judges. Judge Reinhardt's majority opinion was for a court that was splitting 6-5. Under 9th Circuit rules, an en banc panel (which, despite the name, constitutes just 11 judges rather than the full 9th Circuit bench) issues precedential decisions for the Circuit even if they are split decisions, rendering this opinion very consequential. The court issued Judge Reinhardt's opinion 11 days after he died, explaining that he had completed his work on the case and the opinion simply had not been released, and therefore deciding that his vote would count.
The Supreme Court had little time for this argument. First, the Court cited United States v. American Foreign S.S. Corp., 363 U.S. 685, 687-691, for the proposition that a judge an active judge is one who is still in active service (a judge in that case had retired prior to the issuance of a ruling), and also for the proposition that a case or controversy is "determined when it is decided." In other words, the issuance of the opinion itself is the relevant deadline, and a judge not in active service "is without power to participate" in the ultimate resolution of a case.
The Court further made clear that "we are not aware of any rule or decision of the Ninth Circuit that render's judges votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released." The Ninth Circuit, therefore, may have felt that Judge Reinhardt's participation in the case ended prior to his death 11 days before the decision was issued, but the Supreme Court made clear that there was no reason that had to be the case had the judge not died. As with the retired judge in American Foreign S.S. Corp., however, Judge Reinhardt no longer had the power to participate in the case by the time it came down.
"Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. [author's aside: I told you there would be zombie judges in this opinion!] But federal judges are appointed for life, not for eternity." With that, the Court granted cert, vacated the judgment below, and sent the case back to the Ninth Circuit for proper resolution.
This was undoubtedly the correct opinion, and there isn't much further analysis needed. It's somewhat remarkable that the Ninth Circuit didn't get this one right. Incidentally, I have no idea why Justice Sotomayor did not join the Per Curium opinion and instead issued a concurrence in the judgement instead. She did not write an opinion, so it is probably a pretty quirky reason that she doesn't feel the need to articulate fully.
